Light moments mark first day in Supreme Court

Tuesday November 14 2017

 Supreme Court

Election petition lawyers ready to argue their cases at the Supreme Court on November 14, 2017 during the pre-trial hearing. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP 

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Judges try to keep a straight and inscrutable face in court, showing no excitement or worry and being firm and serious in everything they do.

They had been doing just that in the course of the pre-trial hearing on Tuesday, taking notes, listening and occasionally asking for clarification.

But after 10 minutes of a fluent explanation by Mr Mahat Somane, one of the lawyers representing the Independent Electoral and Boundaries Commission (IEBC), Chief Justice David Maraga smiled, looking bemused.

Mr Somane had explained that his client had provided all the documents bearing information on the technological aspects of the conduct of the election that the petitioners and Nasa needed.

Justice Maraga and the rest of the judges had looked on as Mr Somane, using technical jargon, explained what his client had provided to shed light on the matter.

He had also referred to a bid by petitioners Njonjo Mue and Khelef Khalifa, through their lawyers Julie Soweto and Harun Ndubi, to have all the forms used in the election, the memory cards, Kenya Integrated Election Management System kits and their logs as “a fishing expedition”.

When the lawyer concluded, Justice Maraga asked him: “Are you saying that all the information they are seeking has been provided?”

“It is all in the 40GB drive,” Mr Somane said.

“So they should go fishing there?” Justice Maraga asked, provoking laughter from the men and women in black robes seated before him and almost drowning out Mr Somane’s positive response.

The Harvard-educated lawyer was in the IEBC team in August and presented some of the arguments but did not play a role as prominent as he did on Tuesday, where he also showed a good grasp of the technological side of the election.

Ms Melissa Ng’ania, another lawyer, was last time in President Uhuru Kenyatta’s team led by Mr Fred Ngatia.

This time around, she was given the first opportunity to argue the application to have Nasa removed from the petition and to have the internal memos leaked from the IEBC expunged.

She stepped on a platform to reach the stand, referring to a tablet where her elder colleagues preferred papers.

On the bench before her, only Justice Smokin Wanjala was typing on a laptop as the rest took notes by hand.

Mr Tom Macharia, another of President Kenyatta’s lawyers, would later attempt to illustrate the difficulty of the task if the judges were to allow the scrutiny of the documents in the hard drive supplied by IEBC.

He said the document was in fact 48GB, which if converted to paper would add up to 24 million pages.

“Even if we were to give a 100-man team, these documents, working at the supersonic speed of a document per second, it would take us three years,” he said.

Compared to the hard drive given to the court by the IEBC in the August petition, the current one was six times larger, he added.

When the petitioners’ lawyers were about to make a rejoinder, Justice Maraga told Ms Soweto: “You heard where you are to go fishing.”

But Ms Soweto had not taken kindly the remarks by her male colleagues and as she rose told the judges: “I think my colleagues are taking advantage of my being a lady.”

After the protests from her male colleagues died down, Ms Soweto explained that the documents had been submitted by the IEBC late Monday night and the hard drive had been delivered later.

In such cases, the pre-trial hearing appears like the warm-up, where the lawyers slyly assess each other before the main contest.

Last time, Mr Ahmednasir Abdullahi complained about the crowded and stuffy courtroom.

This time round, there was more space for everybody.

There were also fewer politicians around. Only MPs Aden Duale and Daniel Maanzo were present.

When a dispute arose on whether the petitioners had filed all the documents in the petition by the November 6 deadline, Justice Maraga made the rare decision of having a court staffer respond.